THE SADC PROTOCOL ON SHARED WATERCOURSES DEVELOPMENT BACKGROUND

THE SADC PROTOCOL ON SHARED WATERCOURSES: DEVELOPMENT BACKGROUND AND OVERVIEW OF IMPLEMENTATION PRESENTATION AT THE ECCAS CONVENTION ON THE PREVENTION AND RESOLUTION OF CONFLICT ON TRANSBOUNDARY WATERS CONGO BRAZZAVILLE 18 TH DECEMBER 2017 P. S. RAMOELI, Ag. DIRECTOR INFRASTRUCTURE SADC SECRETARIAT

BACKGROUND TO THE SADC REGION § Comprise 15 (now 16 with the Comoros) Member States with four island states § Aim: to become an integrated regional economy on the basis of equity & mutual benefit § These is governed by Treaty and Declaration that was signed in 1992. § The Treaty provides for member states to agree on various areas of cooperation; (Article 22) § Protocols are developed negotiated and adopted by MS, governing cooperation in the sector § The Water Protocol was the first such protocol adopted by SADC Member states

SADC WATER RESOURCES MANAGEMENT • water resources of the SADC region are: • Limited and unevenly distributed geographically and over time; • frequently shared between several countries in transboundary hydrological basins (e. g. The Zambezi is shared by eight riparian member states) • Over 70% of renewable water resources in the region occurs in shared water; • There are 15 such shared watercourses shared between two or more member state • Two of these watercourses are shared by SADC and other non SADC Member States

PROTOCOL NEGOTIATION PROCESS • Started as negotiation for ZAMCOM 1991/92 • Processes started for Protocol on shared watercourses systems 1993 – 1995, • All member states participated in the negotiation process as technical and legal experts • The first draft was based on assessment of the existing legal instruments from all member states and international water legislations and declarations etc. • Amendment negotiations started in 1998 and ended with a revision in 2000. the 1995 Protocol had come into force 1998. • The 2000 revised Protocol came into force in 2003.

Protocol on Shared Water Courses • SADC Protocol on Shared Watercourse Systems was adopted and signed in August, 1995. • Developed as an off shoot of the ZAMCOM Processes • It is based on the Helsinki Principles and had emphasis on sovereignty of watercourse states in the utilization of shared watercourse; • It came into force on the 29 th September, 1998 • Process of amendments started in 1999 – 2000. • In the process of negotiating amendments it became apparent that the proposed changes were tantamount to a revision of the protocol.

THE SADC PROTOCOL • The Main Objectives of the Protocol is to: • “Foster closer cooperation for judicious, sustainable and coordinated management, protection and utilization of shared watercourses and advance the SADC agenda of regional integration and poverty alleviation” • The Protocol seeks to advance the sustainable, equitable and reasonable utilization of shared watercourses; • Gives the right to use coupled with the duty to protect the watercourse; • Obligate parties to notify each other on planned measures;

The Revised Protocol on Shared Watercourses • The revised Protocol was adopted and signed by all Member States in March, 2000, in Windhoek Namibia; • It came into force in September 2003 after attaining the two-thirds majority ratifications by Member States; • Protocol recognizes all developments that have taken place in international water law such as: • • the Helsinki rules, 1966 the Dublin Principles, 1992 Rio Earth Summit, Chapter 18, Agenda 21 the UN Convention on the Law of the non Navigational use of international watercourses, April 1997

The Revised Protocol on Shared Watercourses • Provisions cover all uses of surface and ground water including agricultural, domestic industrial, and navigational • Strongly influenced by the UN Convention on the Non - Navigational Uses of Shared Watercourses

The Revised Protocol on Shared Water Course • Promotes Respect for sovereignty in the utilization of shared watercourses which recognize: • The Right to utilize vs the obligation to protect; • stipulates use to cover but not limited to , agricultural, domestic, industrial, and navigational uses; • Rules of general or customary international law, community of interest and equitable utilization;

The Revised Protocol on Shared Water Course • Maintaining proper balance between development and environment protection and conservation; • Cooperation on joint projects and studies; • Information and data sharing; • Equitable and reasonable utilization of shared watercourse systems: Several aspects must be taken into consideration in order to achieve equity and reasonable sharing • The revised protocol has borrowed from the provisions of the UN Convention;

The SADC Protocol and the UN Convention • While the original Protocol was leaning mainly on the Helsinki Principles, the revised Protocol is influenced by the UN Convention: • Embodies the principles of equitable and reasonable utilization and participation by all states in the uses of international waters; • Confers obligations on watercourse states in their use of the shared watercourse not to cause harm; • Protection and conservation of the environment and ecosystem;

PROTOCOL AND THE UN WATER CONVENTION • The revised protocol sets out clear objectives of the Protocol • It has adopted the Convention principles and rules and has the watercourse as its scope; • It addresses issues such as flood control, water quality, information on planned measures and sharing of information; • These principles are adopted by all member states signatory to the Protocol and therefore by extension have adopted the provisions of the Convention

Outline: SADC Region Water Conventions UNWC 2000 SADC ORASECOM Incomati ZAMCOM ERU Arts. 5, 6 Art. 3(7)(8) Art. 7. 2 Art. 3(b) Arts. 12, 13, 14. 1 Prevention Art. 7 Art. 3(10) Art. 7. 3 Art. 3(c) Art. 14. 2, 4 Cooperation Art. 8 Art. 3(5) Art. 7. 1 Arts. 4, 5, 7 Art. 14. 5 Env/Ecosystems Arts. 20 -3 Art. 3, Art. 7. 12 -15 Arts. 6, 8 Art. 14. 3 Notification Arts. 11 -16 Art. 4 Art. 7. 5 -10 Art. 13 Art. 16 Consult/Negotiate Art. 17 Art. 4 Art. 8. 1 Art. 15(1) Art. 16. 5 Exchange Info Art. 8 Art. 3(6) Art. 7. 4, 7. 11 Art. 12 Art. 15 Dispute Settlement Arts. 30 -33 Art. 7 Art. 8. 2 -3 Art. 15 Arts. 20 -21 Outline: SADC Region Water Conventions Note: The OKACOM and LIMCOM Agreements are not analysed in detail as both Agreements are primarily concerned with institutional structure, powers and functions, rather than with setting down substantive and procedural obligations applicable to the parties.

IMPLEMENTATION OF THE PROTOCOL IN SADC • Implementation through the regional Strategic Action Plan on IWRMD; • A special focus of RSAP covering Water Governance and Capacity building address the implementation issues of the Protocol; • Establishment and strengthening of River Basin Organization is seen as a direct effort in the implementation of the Protocol; • A forum for sharing experience and getting RBO inputs into their process has been established.

SADC INSTITUTIONAL STRUCTURE SADC Tribunal Summit of Heads of States and Government Council of Ministers Sectoral Committee Of Ministers & Senior Officials Water Resources Technical Committee Sub-Committees Standing. Committee Of Senior Of Officials Ministers of Foreign Affairs Defense & Security Organ on Politics Defense & Security TROIKA SADC Secretariat SADC National Committees Directorate of Infrastructure & Services Sub-Committees Water Divsion 18

Protocol Implementation ØThe protocol sets a framework for implementation and proposes the following institutions: üRiver basin Commissions between Basin States and in respect of each drainage basin, and üRiver Basin Authorities or Boards in respect of each drainage basin. These also includes SPVs (LHDA, ZRA, KOBWA etc)

• The institutions shall have the following broad objectives: ü monitoring and policy development ü promotion of equitable and reasonable utilization ü formulate development and management strategies ü monitoring execution of joint development plans

Implementation: Establishment of RBOs § Move from mostly bilateral agreements toward a river basin approach: – ZAMBEZI : ZAMCOM (2004) – ORANGE SENQU: ORASECOM (2000) – LIMPOPO : LIMCOM (2003) – OKAVANGO: OKACOM (1994) – Progress on various smaller basin – INCO-MAPUTO: WATER SHARING AGREEMENT (2002) – UMBELUZI - JWC – KUNENE - PJTC – ROVUMA – JWC 2008 – Pungwe – JWC – Cuvelai - Cuvecom, 2014 – Buzi, Pungwe, Save BUPUSA

PRIOR NOTIFICATION AND INFORMATION ON PLANNED MEASURES • Article 4 of the Protocol describes the process and conditions for notification and information on planned measures; • This is an important provision in all the basin agreements which are subsidiary to the Protocol; • In order to ensure compliance for some of the basin organisations notification /information on planned measure is a standing agenda item for all their meetings • Work is underway to develop guidelines to assist in the implementation of the provisions of this article at regional and Basin level.

Need for guidelines • SADC Protocol on Shared Watercourses is regional framework agreement for management of shared watercourses • Common understanding amongst Member States of the Protocol is vital for its implementation • Some provisions and principles in the Protocol require further clarification and guidance

Objective of the guidelines • To provide for harmonized interpretation of the Protocol at a regional scale • To provide clear guidance on the steps to take for implementing the provisions of the Protocol • To provide possible linkages with basin and watercourse agreements and guidelines and define those aspects that should be further defined by the Parties to individual watercourse agreements

CONCLUSIONS • Development, negotiations adoption and ratification Protocols is a long process and one that cannot be forced, • Confidence building and trust are very critical ingredients for success; • Water is a shared resource and therefore cooperation in its Utilisation and development is an imperative especially as water resources become more scarce. • Water for Peace and regional integration not conflict but cooperation • There are still challenges relating to the interpretations of some of the important provisions of the Protocol i. e. the Principle of equitable and reasonable Utilisation. • Notification on planned measures – significant harm principle • Water is critical for all our development initiatives as a means to an end therefore a Catalyst for development;

THANK YOU MERCI OBRIGADO pramoeli@sadc. int